Supreme Court Tells Conan Doyle Estate To Take A Hike: Consider Sherlock Holmes In The Public Domain

from the well-that-didn't-take-long... dept

Well that did not take long at all. We just wrote about the Sir Arthur Conan Doyle Estate begging the Supreme Court to issue a stay on the appeals court ruling that determined (easily) that Sherlock Holmes was in the public domain. The Conan Doyle Estate wanted the Supreme Court to issue a stay on the decision while it prepared an appeal. That stay would effectively block the publication of the book that Leslie Klinger was planning -- which was at the center of the lawsuit.

Justice Elena Kagan, who received the request for the stay from the estate has already rejected it with no comment or explanation. She did so without consulting with her fellow justices or without asking (or waiting) for a filing from Klinger. She has every right to just make this decision, but it certainly suggests that the Supreme Court (well, at least Kagan) finds the appeals court ruling to be quite persuasive, and is not at all convinced the estate has a legitimate argument. I'm sure that the estate will still ask the Supreme Court to rehear the case, but at least this initial response suggests that the Supreme Court is not interested. Chalk up another (small) victory for the public domain.

compare to patents

The royalty provisions of a patent licensing agreement which provides for royalties for the use of machines incorporating certain patents are not enforceable for the period beyond the expiration of the last patent incorporated in the machine...

We conclude that the judgment below must be reversed insofar as it allows royalties to be collected which accrued after the last of the patents incorporated into the machines had expired.

The Constitution by Art. I, § 8 authorizes Congress to secure "for limited times" to inventors "the exclusive right" to their discoveries. Congress exercised that power by 35 U.S.C. § 154, which provides in part as follows:"Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the right to exclude others from making, using, or selling the invention throughout the United States, referring to the specification for the particulars thereof. . . . "…

". . . any attempted reservation or continuation in the patentee or those claiming under him of the patent monopoly, after the patent expires, whatever the legal device employed, runs counter to the policy and purpose of the patent laws."...

But patents are in the federal domain, and "whatever the legal device employed"... a projection of the patent monopoly after the patent expires is not enforceable. The present licenses draw no line between the term of the patent and the post-expiration period. The same provisions as respects both use and royalties are applicable to each. The contracts are, therefore, on their face a bald attempt to exact the same terms and conditions for the period after the patents have expired as they do for the monopoly period. We are, therefore, unable to conjecture what the bargaining position of the parties might have been and what resultant arrangement might have emerged had the provision for post-expiration royalties been divorced from the patent and nowise subject to its leverage.

In light of those considerations, we conclude that a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se...The exaction of royalties for use of a machine after the patent has expired is an assertion of monopoly power in the post-expiration period, when, as we have seen, the patent has entered the public domain. We share the views of the Court of Appeals in Ar-Tik Systems, Inc. v. Dairy Queen, Inc.,... that, after expiration of the last of the patents incorporated in the machines "the grant of patent monopoly was spent" and that an attempt to project it into another term by continuation of the licensing agreement is unenforceable....

I just remembered that I had a great aunt who was a renowned poet and religious writer. She died about 40 years ago. I should hire a lawyer to find out if anyone is using her works. The Catholic church still has deep pockets even after settling all the suits for pedophile priests. I'm sure they are still using her books. Why shouldn't I cash in on dear old aunt Madeline just because I was only a kid the last I knew her?

Re:

Depending on when she actually produced these works, her heirs MIGHT be in the window to exercise their right to revert any transfers, although in this particular case, the works may be too old.

Authors, including songwriters and musicians, (or their heirs) have a 5 year window starting 35 years later to revoke any or all transfers of rights in a work (although authorized derivative works, such as movies, can't be revoked).

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I was really just being sarcastic. I want my aunt's writings to be shared by all. Her name is Madeline Aaron. Her poetry works have been included in the Kansas historical collection.

The Catholic church probably owns the rights to her religious writings. She co-wrote them with a priest. No one in our family has even suggested pursuing copyright claims. I'm sure she would have wanted it that way.

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But people will not know for sure and will need a license from you or whoever else. So they'd rather err on the safe side.

The current copyright ranges purport to be designed such that anybody the author might have personally cared about will have died before copyright expires.

But what has a much larger effect on a work's ultimate destiny is that anybody who might have personally cared about the author will be dead when copyright expires.

Nobody to organize readings, memorial concerts, redistribution of works out of copyright and so on that will cause people to pick up what they can.

That kind of stuff usually happens around the 20th anniversary of death, maybe partly financed from licensing royalties flowing to the heirs.

By the time copyright expires, there will be no heirs with interest beyond the revenue stream that has finally dried up, with no viable amount of copies being still in circulation.

Sure, as an heir you have the option of releasing works into public domain early, but people will look at the death date of the author and keep away anyway. And no publisher or rights organization will conveniently help with the paperwork.

Re: compare to patents

Huh. For a limited time. Copyrights used to 14 years plus a 14-year renewal. Not life plus 70 years or some ridiculous number. It's like not having a copyright law at all when the copyright term lasts longer than the lifespan of the majority of the population.

Have we forgotten why copyright exists? It exists to *FORCE* works into the public domain.

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Yes, sadly her poetry works are probably lost forever. Our library has a copy of her best known book but it cannot be checked out. A few years ago I missed a chance to buy a copy and now it is not to be found. If I were to find some of her work and post it online no one in my family would care. I would be afraid some publisher would come after me even though the last printing was probably in the 50's. Such is the evil of our copyright system. So much of our heritage is forever destroyed.

O dear. How will Mr Doyle earn money to sustain his afterlife now! What a pity. And Sherlock Holmes has his days counted, I'm fairly sure any new stories involving him will make the originals vanish. The disaster!